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Family Law judgments

Family Law judgments

By Robert Glade-Wright & Craig Nicol

Child Welfare Family Court Judgment Practice & Procedure Young Persons 

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Children 

Threshold hearing on Rice & Asplund – Application dismissed 

In Mahoney & Dieter [2019] FamCAFC 39 (7 March 2019) the Full Court (Alstergren DCJ, Ryan & Kent JJ) dismissed the mother’s appeal against dismissal of her application for variation of a final parenting order made by the Family Court Division of the District Court of New Zealand (NZ) and registered in 2018 in Australia where the father lived with the parties’ child pursuant to that order. The order, made after a finding that the mother posed a risk of harm, removed the child from the mother’s care and permitted the father to relocate with the child from NZ to Australia, the mother to spend supervised time with the child during school holidays in NZ. 

The mother later obtained a medical report that she was mentally stable, and applied to the Family Court of Australia for the child to spend unsupervised time with her (and ultimately live with her in NZ). Austin J dismissed the application as the mother had failed to establish a sufficient change in circumstances to warrant reconsideration of the order. 

On appeal, the Full Court said at [10]:

“In describing the reason for the child’s removal from the mother’s care . . . the [NZ] court explained that ‘. . . The transfer was necessary for the welfare and safety of [the child] because of the mother’s intense fixed and wrong beliefs about the father’s behaviour . . . These beliefs are not related to his parenting . . . If [the child] learns about these beliefs the damage to her will be adverse and lifelong’”.

The Court continued at [12]:

“At the final parenting hearing the mother attributed the cause of her parental difficulties . . . to . . . a brain injury and hypothyroidism, which she had addressed. However, the evidence before the [NZ] court revealed that the mother continued to hold fixed and wrong beliefs about the father’s behaviour . . . (including that the child was conceived through rape) . . .”

The Court concluded at [39]:

“A proper reading of the [NZ] judgment demonstrates that . . . the decision turned not on whether or not the mother had a mental illness, but that [her] fixed beliefs . . . whatever their genesis or label, posed a risk of harm to the child . . .”

Property 

Transfer of house by husband to sister and brother-in-law held to have been for good consideration

In Deodes & Deodes [2019] FamCAFC 97 (11 June 2019) the wife lost her appeal from dismissal of her application for a declaration that a property the husband transferred without her knowledge to his sister and brother-in-law weeks before the parties’ wedding was held on trust for the husband. The husband had owned the property since 1992; the parties began living together in 2001 and the transfer was in 2004. 

The husband and transferees gave evidence that at the time of transfer the property was worth $232,000 and that the consideration paid to the husband was $152,000, the $80,000 balance being credited against a debt the husband then owed to his sister. The wife claimed that there was an oral trust between the husband and transferees to hold the property on trust for the husband.

At trial, Magistrate Walter of the Magistrates Court of Western Australia found that the $80,000 loan was then owing, held that the property had been transferred for good consideration and dismissed the wife’s application for a declaration of trust. 

The Full Court (Strickland, Kent & O’Brien JJ) agreed, concluding at [29]:

“Her Honour found that the husband owed the second respondent $80,000 at the time of the transfer. She was not persuaded that the transfer was designed to defeat any claim the wife might have. She was satisfied that appropriate market value had been paid, and that the husband benefited from the sale by the discharge of his debt secured by mortgage, the discharge of his debt to [his sister] . . . and the receipt of cash . . .”

Children 

Mother’s secretly taken video of handovers admissible – Her audio of father’s private conversations with the children inadmissible 

In Coulter & Coulter (No. 2) [2019] FCCA 1290 (15 May 2019) Judge Heffernan heard the father’s application to exclude the mother’s secretly made video recordings of the father’s attendance at her home for hand overs and two audio recordings of conversations between him and the children. 

After referring to a court’s discretion (under s135 the Evidence Act 1995 (Cth)) to exclude evidence if its probative value is substantially outweighed by the risk of prejudice, being misleading or wasting time or exclude improperly or illegally obtained evidence unless the desirability of admitting it outweighs the undesirability of doing so (s138), the Court said at [10]-[11]: 

“I am satisfied that it was not improper for the mother to make the video recordings of the two handovers. . . Handovers occur in circumstances where the mother has a legitimate interest in her personal safety 

. . . and in preventing the children from being exposed to conflict and unpleasantness between the parties. At the time that the mother made the video recording, it is her evidence that she had been having ongoing difficulties of that sort with the father. The mother had an ongoing concern about the father’s apparent obsessiveness with matters personal to her and his abusive, coercive and controlling behaviours and past episodes of violence. She was in the process of seeking an intervention order against him to deal with those issues . . . Recording his behaviour was not improper in that context, even allowing for the secrecy with which it was done. In considering the question of impropriety, I also give weight to the conclusion . . . that the conduct in recording the handover was not contrary to a relevant Australian law.

“In my view, it was improper of the mother to make secret audio recordings of private conversations between the father and the children. It involved a significant breach of trust with respect to the children, who were entitled to privacy in their conversations with their father irrespective of any motives he may have had to enlist them in his dispute with the mother.”

The Court found at [12]-[23] that the video was not illegal but that the audio contravened the Listening and Surveillance Devices Act 1972 (SA) and at [24]-[25] that discretion should be exercised to exclude the audio recordings because the desirability of admitting that evidence (as relevant to the mother’s case of parental alienation) was outweighed by the undesirability of doing so, having regard to the children’s right to have private conversations with their father.

Property 

Wife’s $1m inheritance – $1.74m pool ($360K added back for her reckless investment losses as was husband’s life insurance) 

In Anaya & Anaya [2019] FCCA 1048 (18 April 2019) Judge Hughes considered a 45-year marriage between the 86 year old wife and the husband, who was 85 and died during the proceedings. The parties had no children but each had three children from previous relationships. They agreed that their contributions were equal except for the wife’s $1 million inheritance in 1991. 

The wife’s loss of $360,000 by investing with fraudulent brokers after separation was notionally added back. She argued that the husband’s life insurance proceeds should be added back too because while the policies were brought into the marriage by the husband they had been maintained throughout the marriage but ultimately paid out on his death to his children.

The Court said:

“ . . . [T]he wife conceded she had provided separate signed authorities for many of the transactions . . . [which] contained warnings about the risks of the investment which she read but failed to heed . . . (at [51]).

“Despite her evident emotional and likely psychological distress, I am satisfied the wife’s conduct was reckless and comes within the second category of behaviour contemplated by Baker J in Kowaliw [[1981] FamCA 70] . . .” (at [75]).

As to the insurance policies, the Court said at [78]:

“Upon the death of the husband the life insurance policies vested in the beneficiaries . . . Although the policies were owned by the husband prior to the commencement of the relationship . . . they were of low value at that time . . . The premiums were paid from joint resources . . . The policies clearly formed part of the parties’ assets which the husband had a duty to preserve. His children are the beneficiaries of his whole estate . . . I am satisfied that the funds paid under the policies should be notionally added back . . .”

Finding that the net pool was $1.74m including add-backs, the Court at [92] assessed contributions as 65:35 in the wife’s favour. The Court made no further adjustment under s75(2), saying at [100]-[101]):

“ . . . The adjustment to the wife . . . means she will take property to a value of a little over $1.1 million. Although close to $400,000 of that is notional property . . . she should still have sufficient resources to pay her current debts and leave some cash funds.

“Counsel for the wife argued . . . the wife should take another 20 per cent . . . to account for her future needs but in light of the adjustment on contributions I am not persuaded there should be any further adjustment to her. I also bear in mind that the wife will take the Property C unit which is an appreciating asset unlike the remaining assets.”

Robert Glade-Wright, a former barrister and accredited family law specialist, is the founder of The Family Law Book, a looseleaf and online service: see www.thefamilylawbook.com.au. He is assisted by accredited family law specialist 

Craig Nicol. References to sections of an Act in the text are to the Family Law Act 1975 (Cth) unless otherwise specified. The full text of these judgments can be found at www.austlii.edu.au. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

The full text of these judgments can be found at www.austlii.edu.au. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.


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